Filed 4/6/21 Paquette v. Paquette CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
LINDA ELIANA PAQUETTE, B304370
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC694182)
v.
JEROME VICTOR PAQUETTE,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Malcolm H. Mackey, Judge. Affirmed.
Linda Eliana Paquette, in pro. per., for Plaintiff and
Appellant.
Gusdorff Law and Janet Gusdorff; Branson & Branson and
Uzzell S. Branson for Defendant and Respondent.
Linda Eliana Paquette (Linda) appeals from a judgment
entered after a bench trial on her breach of oral contract claim
against her brother, Jerome Victor Paquette (Jerome).1 After an
approximately three-hour trial, the trial court determined that
the two-year statute of limitations on oral contract claims found
in Code of Civil Procedure section 339 (section 339) barred
Linda’s claim against Jerome. On appeal, Linda argues that the
trial court erred in finding her claim time barred, and erred in
declining to find the doctrine of equitable estoppel applicable to
estop Jerome from asserting the statute of limitations defense.
We find that the evidence supports the judgment, therefore we
affirm.
BACKGROUND
Between 2005 and 2008, Linda helped Jerome with various
expenses, including expenses related to dental work and divorce
proceedings. During this time, Jerome was doing work on
Linda’s home, among other things. Linda testified that she
helped Jerome with his expenses in reliance on his promise to
pay her back at his death through his will. Linda alleged that
the medical expenses, legal expenses for Jerome’s divorce, and
various other amounts she advanced him amounted to
$61,057.30.2
Linda typed a will that Jerome signed on April 28, 2005.
At the time, Jerome was still married to his now ex-wife. Linda
told Jerome to sign the will to protect his assets from his ex-wife
1 Because the parties share the same last name, we refer to
them by their first names for clarity.
2 At trial, the parties stipulated that the amount of Linda’s
claim was $49,771.64.
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in case anything happened. The will ensured that Jerome’s
assets would go back to the family. The will provided that upon
Jerome’s death, his assets would go to his parents, and if they
predeceased him, to Linda. At the time, Jerome did not know if
Linda had a will, nor did Linda promise to sign a will if Jerome
signed the will she drafted. Linda did not promise to make
Jerome the beneficiary of her will.
At trial, Jerome and Linda offered conflicting evidence as to
whether they entered into an oral agreement for Jerome to repay
Linda for the money she spent on his behalf. Linda testified that
there was “always” an “understanding and agreement that I
would be paid back somehow.” Linda insisted that during the
course of his divorce, Jerome represented to her that she would
be compensated, and that it was a “continuing conversation”
between the two of them since that time. Jerome, on the other
hand, denied ever having entered into an agreement to repay
Linda. He said the dental work was a gift, since their parents
had never paid for him to have dental work. He acknowledged
that Linda helped him with his divorce, but insisted that he
never promised to pay her back. Jerome testified that Linda told
him she would “take care of all of it,” and never mentioned
anything about paying her back. Jerome was never aware of the
amounts that Linda was paying, and never saw any invoices.
Jerome denied agreeing to pay Linda back for any of the other
expenses she claimed to have advanced for him.
Jerome testified that during the 2013-2014 period, Linda
asked him three times to sign estate planning documents naming
her as beneficiary. Jerome declined to sign the documents.
With a letter dated April 26, 2014, Linda enclosed a joint
will designed to protect her and Jerome in the event of either’s
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death. The letter read, in pertinent part: “Enclosed is a joint will
wherein we devise our real property to each other. [¶] You have
until May 10, 2014, to sign the joint will with me. I will
otherwise assume it is your intent to disinherit me and give my
real property to others.”
Linda testified that she and Jerome had an oral agreement
to give each other their estates, and admitted that her demands
to her brother dated from 2014. However, Linda asserted that
although he did not comply with her 2014 demand, Jerome “kept
continually saying that no, I’ll do it. I’ll do it.” Linda claimed
that she relied on her brother’s assurances, and was unaware of
her brother’s breach until she received a letter from his attorney
dated December 20, 2017, which stated that Jerome was not
obligated to leave his estate to Linda.
PROCEDURAL HISTORY
On February 15, 2018, Linda brought this lawsuit against
Jerome. She alleged breach of an oral contract that the two had
allegedly made in 2005. Linda alleged that the breach arose in
2017 when she received the letter from Jerome’s attorney stating
“whether he decides to include you in his estate plan is his
decision.”
A bench trial went forward on October 16, 2019. After
Linda’s case in chief, Jerome moved for judgment for the defense
on statute of limitations grounds. After hearing the arguments of
the parties, the court found that the statute of limitations applied
to bar Linda’s claims and rendered judgment in favor of Jerome.
On December 24, 2019, the court filed a statement of
decision. The court noted that Linda brought a single cause of
action for breach of oral contract, and that on April 26, 2014,
Linda made a written demand that Jerome sign, on or before
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May 30, 2014, a joint will she had prepared pursuant to the oral
agreement. Jerome did not sign the will, and Linda did not file
her lawsuit until February 15, 2018, more than two years later.
Pursuant to section 339, Linda’s claim was therefore barred.
On February 18, 2020, Linda filed her notice of appeal from
the judgment.
DISCUSSION
I. Standard of review
Linda presents two issues on appeal. First, she argues that
the trial court erroneously ignored her evidence that
December 20, 2017 was the first date she learned that Jerome
would not honor his oral promise to pay her back at his death
through his will. Second, she argues that the trial court erred in
declining to apply the doctrine of equitable estoppel to extend the
two-year statute of limitations.
Both of the issues set forth above were decided by the trial
court after hearing conflicting evidence regarding the events
leading up to this lawsuit. When a trial court resolves disputed
facts concerning the application of the statute of limitations, the
standard of review is substantial evidence. (Winograd v.
American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632; Jolly
v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112 [“resolution of the
statute of limitations is normally a question of fact”].) Under this
standard, “[i]f the trial court’s resolution of the factual issue is
supported by substantial evidence, it must be affirmed.”
(Winograd v. American Broadcasting Co., supra, at p. 632.) The
trial court’s decision as to whether equitable estoppel applies is
also a factual question. (Cuadros v. Superior Court (1992)
6 Cal.App.4th 671, 675.) “The issue is whether, viewing the
evidence and all the inferences therefrom in the light most
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favorable to the defendants, there was substantial evidence upon
which the court could reasonably have found as it did.” (Ibid.)
“[W]e defer to the trier of fact on issues of credibility.”
(Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.)
“‘“‘[I]t is the exclusive province of the [trier of fact] to determine
the credibility of a witness and the truth or falsity of the facts
upon which a determination depends.’”’” (Ibid.)
II. Substantial evidence supported the decision that the
statute of limitations barred Linda’s claim
There is no dispute that the applicable statute of
limitations is two years pursuant to section 339. After hearing
testimony and taking evidence from the parties, the trial court
made the factual determination that Linda knew of her claim for
breach of oral contract more than two years prior to the date she
filed her complaint. Specifically, in a letter dated April 26, 2014,
Linda demanded that Jerome sign, on or before May 30, 2014, a
joint will that she had prepared pursuant to the alleged
agreement. The letter specified that if Jerome did not sign the
will, Linda would presume he had breached the alleged
agreement. Jerome did not sign the will. However, Linda did not
file her complaint until February 15, 2018, more than two years
later.
Linda asks that we revisit the facts and interpret them
favorably to her. She states that she and Jerome entered into an
oral agreement in 2005, whereby in exchange for Linda providing
health care costs and legal fees, among other things, Jerome
would leave Linda his entire estate. Although she admits
sending Jerome a letter and joint will on April 26, 2014, and
admits that Jerome did not sign that will, she insists that he
provided continued assurances that he would pay her back
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through his will. Linda asserts that she believed these continued
assurances. By letter dated December 20, 2017, Jerome’s
attorney made it clear that Jerome had no obligation to pay her
back though his will. Linda claims that this was the first time
that she learned of her brother’s breach.
There was contrary evidence presented to the court at trial.
Jerome testified that despite Linda’s demands that he sign joint
wills in 2013 and 2014, he refused to do so. Linda’s ultimatum in
April 2014 specified that if Jerome did not sign and return the
joint will by May 30, 2014, she would assume he was refusing to
include her in his will. Jerome never signed the will. In contrast
to Linda’s evidence, Jerome testified that he never said that he
would pay her back any of the money she loaned him in the past.
Instead, Linda represented that she would take care of these
things for him, and never asked that he promise to pay her back.
We must defer to the trial court’s resolution of these
disputed facts regarding Linda’s claims, and view the conflicting
evidence in the light most favorable to the respondent.
(Winograd v. American Broadcasting Co., supra, 68 Cal.App.4th
at p. 632; Cuadros v. Superior Court, supra, 6 Cal.App.4th at
p. 675.) Jerome’s testimony constituted substantial evidence
from which the trial court could have reasonably found that the
statute of limitations began to run as early as 2014. To the
extent that Linda provided conflicting testimony, we must
assume that the trial court made a credibility determination that
Jerome presented more credible evidence. We must defer to the
trier of fact on the issue of credibility. (Lenk v. Total-Western,
Inc., supra, 89 Cal.App.4th at p. 968.)
Substantial evidence supports the trial court’s
determination that the statute of limitations on Linda’s breach of
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oral contract claim began to run in 2014. Thus, her complaint,
filed in 2018, was barred by the two-year statute of limitations
found in section 339.
III. Substantial evidence supported the determination
that the doctrine of equitable estoppel was not applicable
Linda next argues that even if the statute of limitations
started to run in 2014, the trial court should have found the
doctrine of equitable estoppel applicable to extend the time for
filing her complaint. Linda claims that the trial court ignored the
evidence that in spite of refusing to sign the joint will, Jerome
provided continued assurances that his estate would repay her.
Linda insists that it was not until she received the December 20,
2017 letter from Jerome’s attorney that she first learned that
Jerome had no intention of honoring their agreement.
Again, Linda asks us to revisit the evidence and interpret it
favorably to her. Conflicting evidence in the record, which the
trial court was permitted to believe, showed that Jerome never
promised to repay Linda for any of the money that she expended
on his behalf. The trial court resolved this conflicting evidence
against Linda, apparently finding unpersuasive her assertion
that she relied on repeated assurances from Jerome. Because
substantial evidence in the record supports the trial court’s
factual determination regarding the applicability of equitable
estoppel, we defer to this factual finding. (Cuadros v. Superior
Court, supra, 6 Cal.App.4th at p 675.)
The cases cited by Linda are distinguishable. Linda first
cites Bacon v. Kessel (1939) 31 Cal.App.2d 245 (Bacon). Bacon
presents an example of a case where equitable estoppel was
appropriate. However, the case is distinguishable from this
matter. In Bacon, a brother and sister were beneficiaries of their
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father’s will. The brother intended to contest the will unless
some arrangement was made whereby he received his proper
share of the estate. The sister assured him that if he did not
contest the will, she would provide him with a portion of her
share. When the estate was distributed, she repudiated her
agreement and the brother commenced his lawsuit. The key
difference is that the court resolved the “direct and hopeless[ly]”
conflicting evidence in favor of the brother. (Id. at p. 246.) The
court found that the “‘defendant promised and assured plaintiff
that if he would not contest the will that she would pay him one-
eighth of what she would receive from the estate or its equivalent
value; that plaintiff relied implicitly in defendant and trusted her
completely and fully believed that she would keep her word in
said matters and in consideration thereof and solely by reason
thereof plaintiff did forbear filing a contest of said Will and
probate proceedings.’” (Id. at p. 248.) Under these factual
circumstances, as found by the lower court, the court of appeal
determined that the doctrine of equitable estoppel should apply.
We must, like the Bacon court, give deference to the trial court’s
findings. However, in this case, the trial court determined that
Jerome did not provide any such assurances and Linda was not
wrongfully persuaded to forbear from pursuing her claim.
Bautello v. Bautello (1998) 64 Cal.App.4th 842 (Bautello)
also does not help Linda’s position. In Bautello, the trial court
sustained a demurrer on statute of limitations grounds on a son’s
lawsuit against his parents’ trust for failure to convey a property
as promised. The matter was reversed because the son “alleged
sufficient facts to come within the doctrine” of equitable estoppel.
(Id. at p. 848.) Here, Linda was permitted to move beyond the
demurrer stage of the proceedings to a trial on the merits of her
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claims. The trial court did not credit her evidence that Jerome
provided her with assurances of payment such that the doctrine
of equitable estoppel should apply. Because substantial evidence
in the record supported the trial court’s decision, we do not revisit
it.3
IV. Linda’s argument that she was not permitted to fully
present her case was forfeited
After the trial court announced its judgment, and directed
Jerome’s counsel to prepare a judgment for the defense, Linda
asserted that she would like a statement of decision and also
“would like for us to put together the dollar amounts” that she
and counsel had agreed upon. Jerome’s counsel objected that it
was inappropriate to adduce more evidence, but that he was
happy to stipulate “as to the numbers we agreed were contained
in her demand.” At that time, Linda asked that it be noted for
the record that she was not permitted to give such additional
testimony.
The trial court inquired, “What testimony are you talking
about?” Linda responded, “Everything that you just denied, your
honor.” The trial court noted that testimony relevant to the
statute of limitations was all that was necessary.
On this record, Linda argues that she was denied the right
to fully present her case. Linda cites one case, Jorgensen v.
Jorgensen (1948) 32 Cal.2d 13, 18, for the proposition that “a
3 Juran v. Epstein (1994) 23 Cal.App.4th 882, is irrelevant.
The issue was whether an oral contract to make a will was
enforceable despite a former Probate Code section placing strict
limits on such contracts. The Juran court found that in enacting
the statute, the Legislature did not intend to abrogate equitable
principles such as equitable estoppel. (Id. at p. 896.)
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party shall not be deprived of a fair adversary proceeding in
which fully to present his case.” Linda presents no other
authority, or reasoned argument, as to why she should have been
permitted to present the additional testimony. When a party
asserts a point but fails to support it with reasoned argument
and citations to authority, we may treat the point as forfeited.
(People v. Stanley (1995) 10 Cal.4th 764, 793.)
Further, Linda makes no effort to show how her additional
testimony or evidence would have changed the outcome of this
case. “A judgment may not be reversed on appeal . . . unless
‘after an examination of the entire cause, including the evidence,’
it appears the error caused a ‘miscarriage of justice.’ (Cal. Const.,
art. VI, § 13.).” (Soule v. General Motors Corp. (1994) 8 Cal.4th
548, 574.) Generally, errors do not require reversal “unless there
is a reasonable probability that in the absence of the error, a
result more favorable to the appealing party would have been
reached.” (Ibid.)
Linda has failed to present adequate authority and
reasoned argument as to why she should have been permitted to
present additional evidence after judgment had been rendered at
trial. Further, Linda has failed to show that any purported error
was prejudicial. We deem the issue forfeited and decline to
address it further.
V. Jerome’s motion for sanctions
Jerome has filed a motion for appellate sanctions pursuant
to Code of Civil Procedure section 907 (section 907) and Rule
8.276, subdivision (e) of the California Rules of Court. Section
907 permits a reviewing court to add damages to the costs on
appeal when it appears that the appeal was “frivolous or taken
solely for delay.”
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The standards for determining frivolous appeals fall into
two general categories, subjective and objective. (In re Marriage
of Flaherty (1982) 31 Cal.3d 637, 649 (Flaherty).) “The subjective
standard looks to the motives of the appellant and his or her
counsel.” (Ibid.) “The objective standard looks at the merits of
the appeal from a reasonable person’s perspective.” (Ibid.) “The
two standards are often used together, with one providing
evidence of the other.” (Ibid.) However, both tests are relevant
to the determination that an appeal is frivolous. (Id. at p. 650.)
Jerome argues that Linda’s appeal meets the definition of
frivolous under both standards. He argues generally that Linda
skewed the facts in her favor, ignored the standard of review, and
therefore we may infer that the appeal was taken solely to drain
Jerome’s resources.
However, the Flaherty court noted that counsel and parties
have “a right to present issues that are arguably correct, even if
it is extremely unlikely that they will win on appeal.” (Flaherty,
supra, 31 Cal.3d at p. 650.) “An appeal that is simply without
merit is not by definition frivolous and should not incur
sanctions.” (Ibid.) The borderline between a frivolous appeal and
one which simply has no merit is vague, thus “the punishment
should be used most sparingly to deter only the most egregious
conduct.” (Id. at p. 651.) As Linda’s appeal does not demonstrate
egregious conduct, we therefore deny Jerome’s motion for
sanctions.
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DISPOSITION
The judgment is affirmed. Appellant shall pay the costs of
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, Acting P. J.
ASHMANN-GERST
__________________________, J.
HOFFSTADT
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